LETTER OF THE LAW
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Time for Hong Kong’s courts to get tough on burglars?

Maximum penalty for the offence is 14 years in jail, but courts have for years adopted far lower sentencing standards

PUBLISHED : Monday, 02 January, 2017, 4:45pm
UPDATED : Monday, 02 January, 2017, 8:09pm

Burglary is always a serious crime, causing public concern. It can be particularly distressing for the victim, with personal loss allied to a sense of violation and insecurity. If the victim actually confronts the burglar, particularly at night, the whole experience can be utterly traumatic.

Although the maximum sentence for burglary is 14 years’ imprisonment, the courts, for many years, have adopted far lower standard sentences. For a burglary committed by an adult first offender in domestic premises, a starting point for sentence of three years’ imprisonment is applied. If such a person commits a burglary in commercial premises, the offence is treated less seriously, with the customary sentence starting at 2½ years’ imprisonment.

These sentences may, however, be adjusted upwards or downwards, depending on the aggravating or mitigating factors.

Millions stolen with 46 burglary reports across Hong Kong during the Christmas season

A domestic burglary may, therefore, be treated more seriously if, for example, it involves an occupied home at night, is carefully planned, targets the elderly, the disabled or the sick, has a traumatic effect on the victim, is committed by a professional burglar, is accompanied by vandalism or wanton injury to the victim, involves goods of high value, or if the offender is part of a gang.

Sometimes outside gangs come to Hong Kong to target the homes of the affluent, which always aggravates offence seriousness.

A commercial premises burglary is likewise aggravated if, for example, there is a concerted gang entry, if force is used to enter the premises, if it is well-planned and large-scale, if high-value items are stolen, or if the offender has previous convictions.

Many burglaries are believed to go unreported, probably because people blame themselves for lax security

The gravity of the burglary may, alternatively, be mitigated if, for example, there is a guilty plea, or if nothing of real value was taken, or if the offender’s role was minor, or if the offence was committed on impulse, or if there was no damage or disturbance to property. Although some burglars are drug addicts, who need to steal to raise money to buy drugs, self-induced addiction is never a mitigating factor.

Burglary is widespread in Hong Kong, and losses are huge.

Many burglaries, particularly when losses are minimal, are believed to go unreported, probably because people blame themselves for lax security, but also because they know how difficult it is for the police ever to catch the culprits.

Although a high detection rate can operate as a disincentive to crime, the police have had only very limited success in cracking reported domestic premises burglaries. Whereas the detection rate was 10.4 per cent in 2014 and 13.9 per cent in 2015, it stood at only 10.8 per cent in the first two-thirds of 2016, and Hong Kong is by no means unique in this.

In 2014, for example, London’s Metropolitan Police solved only six out of every 100 burglaries, while in Dublin the detection rate was 11.8 per cent.

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The courts may soon be required, if the problem is not contained, to do far more to discourage burglars. The working assumption of the criminal justice system is that stern sentences can deter potential offenders, which is why guideline sentencing judgments are periodically issued for grave offences, including, for example, drug trafficking, rape and robbery. If, however, as with burglary, the offence remains widespread, this strongly suggests that existing sentencing levels are inadequate, and may require revision.

The former chief justice of England and Wales, Lord Taylor, once said that sentences should “take their colour” from the maximum penalties which the law provides. As 14 years’ imprisonment is the maximum for burglary, it may soon become necessary for the Court of Appeal to consider if the current sentencing guidelines need, in the interests of deterrence, to be adjusted upwards, so as to be closer to the top of the scale, rather than, as at present, closer to the floor.

Grenville Cross SC is a criminal justice analyst